Employment & HR: Keep Quiet to Keep Working

It's Monday morning. You fire up your email. The inbox is full of angry messages about an employee who posted a rant over the weekend; it has been shared hundreds of times.His profile says he works for you.

According to employment attorneys and even the staunchest defenders of freedom of speech, you're on pretty safe ground in Ohio if you want to cut the loudmouth loose.

“For private-sector, non-union employers in Ohio, they have a lot of latitude to discipline or terminate an employee who engages in hate activity or very radical political activity,” says Kevin Griffith, a Columbus attorney with Littler Mendelson who has defended employers in hundreds of wrongful termination cases.

“Free speech protected by the First Amendment doesn't apply in private employment settings in Ohio.”

It's a growing tactic of activists on both sides to go after the paychecks of those with whom they disagree.After white supremacists and neo-Nazi groups marched in Charlottesville, Va., this summer,an online effort began to identify people photographed at the rallies and then notify their employers.Several were fired or quit.

Locally, Columbus City Schools moved in June to fire a 13-year garage supervisor after he posted comments on the Facebook page of the local LGBT Pride festival that gay people “should be killed or at least relocated.” Dozens contacted the school district, which cited a policy that balances employees' off-duty right to free speech against “the interests of this district.”

“I wouldn't be surprised if we see more of that,”says Steven Loewengart, regional managing partner in Columbus for Fisher Phillips, a nationwide firm that specializes in employment law.

California,Colorado,New York and NorthDakota prohibit employers from firing people based on activities away from work. Ohio doesn't, but Loewengart says there are still a few exceptions to the ability of employers to fire people because of their speech or conduct away from the office.

First Amendment protections kick in if you're a government employer.While many people assume freedom of speech is a right that applies to every American in every situation, it's not. The First Amendment prohibits government—Congress, the state, city and county officials, school districts, public colleges and universities—from denying citizens the right to speak. It also restricts government's ability to fire its own for non-work speech or conduct. And Section 7 of the National Labor Relations Act protects employees' right to speak out about working conditions.Union contracts and company policies also might address issues of free speech.

But it may be surprising to learn who backs the right of private employers to sack any whose speech they consider offensive or harmful to business.“The employer has every right to do that,” says J. Bennett Guess, executive director of the ACLU of Ohio. “If you work for a private employer, you can be fired for anything they deem appropriate within the law.”

The American Civil Liberties Union is famous for defending First Amendment rights, even of those whose speech is far out of the mainstream. The group itself proclaims as one of its proudest moments a1978 court battle defending the right of the neo-Nazi National Socialist Party of America to march in Skokie, Ill., a Chicago suburb with a large Jewish population.But that was a case in which the government took action against people's right to assemble and speak,Guess says, because local officials in Skokie tried to stop the planned march. In that same vein, the Ohio ACLU spoke out against Columbus City Schools' move in June to fire employee Christopher Dodds, whose wish for violence againstLGBT people it called “vile” but protected by the US Constitution.

Columbus City Schools spokesman Scott Varner says Dodd was fired because he posted “highly offensive, unprofessional comments” on Facebook and other social media forums from a district computer during work time. He also used school resources to operate a personal business during work hours, Varner says.

Whether an action is taken by the government or a private entity acting within its legal rights is the line of demarcation for the ACLU, Guess says.

“Many people wrongly assume the First Amendment protects your right to say what you want,any time you want, any place you want,” he says. “I like to say the First Amendment doesn't give you the right to talk back to your mother.” People have the right to speak, US Supreme Court Justice Oliver Wendell Holmes wrote in 1892, but they don't have the right to a job.

Social media are a new way to monitor behavior, but the underlying issues are old ones.

“It's faster and it's more visible because of social media,” Griffith says.“But it's the same thing as, ‘Do you know what Jim does on the weekend? Do you know where I saw Sue?'”

The tactic now used against white supremacists was used by them against civil rights activists in the 1950s and‘60s, says Hasan Kwame Jeffries, an associate professor of history at Ohio State University.

Rosa Parks was fired from her job as a department store seamstress after she refused to give up her bus seat to a white passenger and triggered the 1955 Montgomery bus boycott in Alabama. State police informants wrote down license plate numbers of attendees at civil rights meetings and demonstrations throughout the South, Jeffries says. Employers fired workers, landlords evicted tenants, and colleges expelled students who participated in protest activities.

Jeffries says he doesn't attach a moral judgment to the political tactic, but he does judge the motives of those using it. People being fired for supporting racial equality then and for advocating white supremacy now reflects on what society deems acceptable in both eras, he says.

“It is very much an interesting reversal,” he says. “You're calling on employers to say, ‘Where do you stand on these issues in the public sphere? This is a representative of your company. Now what are you going to do about it?'”

Loewengart says Ohio companies are well within their rights to fire workers whose off-duty activities could affect business or whose actions hurt workplace morale. Written policies about off-duty activities can be a double-edged sword, though, he says. They are often the best defense when a terminated employee sues, but a poorly crafted policy can backfire.

Ohio is an “at-will” employment state, and Griffith says that means non-government employers who don't have collective bargaining agreements in place or contracts with individual employees can fire people for pretty much any reason that's not covered by federal or state laws.

“They can say, ‘Look, we're not going to employ you if you're part of a white supremacist or neo-Nazi group, but we don't even have to give you a reason why.' You could give a lot of reasons for it, but an at-will employer in Ohio doesn't have to give a reason.”

Zuni Corkerton, founder and president of Ref Check Information Services Inc., says employers have good reason not to hire someone whose non-work activities might indicate problems. But Facebook isn't the place to do that kind of research, she says.

“I advise clients not to look at social media. We don't feel that it's solid enough information,”she says.“When there's not enough staff to do good background checks,social media becomes an easy way.”

RefCheck, which performs pre-employment background screenings, relies on conversations with former employers, as well as checks of public records, employment history, education and other data.

And yes, Corkerton says, it's still possible to get good information from reference checks. Insights into temperament, judgment and ethical lapses aren't obtained through data searches.

There are questions employers should ask themselves before monitoring employees and potential employees on social media, Corkerton says.

“Why are you looking at social media? What is your purpose? What are you hoping to find?” she asks. “Once you have that information as an employer, what are you going to do with it?”